In a fractured church-state opinion with no majority consensus, the U.S. Supreme Court on Wednesday ruled in favor of a federal law that preserved a Christian cross memorial to World War I veterans amid federal land in California’s Mojave Desert.
“Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message,” Justice Anthony Kennedy wrote in the lead opinion in Salazar v. Buono. “Rather, those who erected the cross intended simply to honor our nation’s fallen soldiers.”
The high court opinion, which included writings by six of the nine justices, sent the long-running litigation back to Judge Robert Timlin of the U.S. District Court for the Central District of California with instructions to give greater weight to the 2004 law that was aimed at ending litigation over the cross, first planted in the ground in 1934. The statute called for selling the land immediately surrounding the cross to the Veterans of Foreign Wars so that it would no longer be on federal property.
Timlin had ruled that the new law did not change the need for the existing injunction against the cross, and he blocked implementation of the law. “This was error,” wrote Kennedy. A panel of the U.S. Court of Appeals for the 9th Circuit upheld the injunction against the law.
Kennedy said the law represented “Congress’ legislative judgment that this dispute is best resolved through a framework and policy of accommodation….That judgment should not have been dismissed as an evasion.”
Kennedy’s writing, which won the full agreement of only one other justice — Chief Justice John Roberts Jr. — does not order the judge to rule a specific way after giving more weight to what Congress passed. But Kennedy’s clear message was that, even if the judge still finds the cross to be a form of religious endorsement, he should consider “less drastic relief” than blocking the law altogether. One possible remedy mentioned by Kennedy: erecting signs to make it clear the VFW owns the land on which the cross stands. During oral argument last October, Solicitor General Elena Kagan said the government was willing to post such a sign.
Groups that viewed the cross as a sign of government endorsement of religion criticized the ruling.
Alex Luchenitser, senior litigation counsel for Americans United for Separation of Church and State, called it a “very bad decision” that signals the current Court’s permissive view toward religious displays on public property.
But Luchenitser said the ruling contained “good news” as well — namely, that “technically, nothing other than the holding should be treated as precedent,” including Kennedy’s discussion of the meaning of the cross. That is because no one opinion commanded a majority.
Justice Samuel Alito Jr. concurred with most of Kennedy’s opinion, but said he saw no need to send the case back to district court before allowing the law to take effect. Congress acted properly, Alito said, to avoid the “disturbing symbolism” that would have been created if the cross had been destroyed.
Justices Antonin Scalia and Clarence Thomas joined only Kennedy’s bottom-line judgment, because they asserted that Frank Buono, the retired government worker who initially challenged the cross, did not have standing to sue. Scalia said federal courts could not rule on the merits of the cross dispute until a “proper case” is presented. “This is not it,” he concluded.
In dissent, retiring Justice John Paul Stevens, a World War II veteran, said, “I certainly agree that the nation should memorialize the service of those who fought and died in World War I, but it cannot lawfully do so by continued endorsement of a starkly sectarian message.” Stevens said applying the long-standing injunction against the new law was appropriate because the law would permit the display of the cross — which is specifically what the injunction barred.
Justice Stephen Breyer wrote a separate dissent, agreeing that applying the injunction to block the federal law was appropriate.
Tony Mauro can be contacted at email@example.com.